Bartleby The Bigots

For nearly 40 years, the vibrant rainbow flag of the gay pride movement has come to represent diversity and tolerance. However, a decision by the National Trust to demand 350 of its volunteers at a Jacobean mansion wear the banner or be banished to backroom chores has triggering an angry backlash.

Bosses at Felbrigg Hall in Norfolk wrote to their army of volunteers asking them to all wear a lanyard or badge displaying the rainbow flag to welcome lesbian, gay, bisexual, transgender and queer visitors. The email, seen by The Telegraph, reveals that those who refused would not be allowed to meet and greet guests to the 17th Century hall.

More:

“There’s a group of about 10 of us who have volunteered for more than 10 years, and we’ve now been told that if we don’t toe the line, we can’t do our jobs.

“People are getting ill over this, they’re losing sleep because they’re missing out on a big part of their daily lives and doing something they love so much.”

Another volunteer, who did not want to be named, said she had not signed up for any shifts during the summer Prejudice and Pride campaign when volunteers and the 48 staff are required to wear the rainbow flag colours.

An email written by Ella Akinlade, the general manager at the hall, said the use of the lanyard and badge was an attempt to “send a very clear and visible sign to visitors” that they support the LGBTQ community who “shaped” many of the Trust’s properties.

And:

In a statement, Annabel Smith, the Trusts’ head of volunteering, said staff and volunteers sign up to the organisation’s “core ambition”, adding that the Trust was committed to “promoting equality of opportunity and inclusion”.

She said “As part of our ‘Prejudice and Pride’ programme our staff and volunteers are wearing rainbow badges and lanyards, as an international symbol of welcome.

“We do recognise that some volunteers may have conflicting, personal opinions. However whilst volunteering for the National Trust we do request and expect individuals to uphold the values of the organisation. We encourage people with any concerns to chat to our teams.”

What sanctimonious nonsense. The “values” of an organization like the National Trust ought to have nothing to do with cultural politics, and everything to do with preserving Britain’s historic sites, and making them accessible to visitors. These workers did not refuse to participate in the special LGBT program (though some of them were offended that the National Trust outed the manor’s deceased last owner, who was highly private about his sexuality). This is nothing more than the kind of obnoxious virtue signaling we have become accustomed to by gay activists and their allies. That volunteers at a state-run historic preservation organization are compelled to do something like this as a condition of service is appalling.

While Christians may not be persecuted for their faith per se, they are already being targeted when they stand for what their faith entails, especially in matters of sexuality. As the LGBT agenda advances, broad interpretations of antidiscrimination laws are going to push traditional Christians increasingly out of the marketplace, and the corporate world will become hostile toward Christian bigots, considering them a danger to the working environment.

The Human Rights Campaign Foundation, a powerful LGBT pressure group, publishes an annual Corporate Equality Index. In its 2016 report, over half of the top twenty U.S. companies in have a perfect score. To fail to score high is considered a serious problem within leading corporations.

Among the criteria the foundation used in its 2016 evaluations was that “senior management/executive performance measures include LGBT diversity metrics.” A company that wants to win the foundation’s seal of approval will have to show concrete proof that it is advancing the LGBT agenda in the workplace. The “ally” phenomenon—straight people publicly declaring themselves to be supporters of the LGBT agenda—is one way companies can both demonstrate progress to gay rights campaigners, as well as identify dissenters who may stand in the way of progress.

I have talked to a number of Christians, in fields as diverse as law, banking, and education, who face increasing pressure within their corporations and institutions to publicly declare themselves “allies” of LGBT colleagues. In some instances, employees are given the opportunity to wear special badges advertising their allyship. Naturally if one doesn’t wear the badge, she is likely to face questions from co-workers and even shunning.

These workers fear that this is soon going to serve as a de facto loyalty oath for Christian employees—and if they don’t sign it, so to speak, it will mean the end of their jobs and possibly even their careers.

So, now the National Trust knows which of its volunteer staff at Felbrigg Hall object in some way to gay pride. It may be because these staffers are Christians or Muslims. It may be because they simply think it’s wrong to politicize the workplace. The point is, this exercise was a way of compelling “bigots” in the ranks of that workplace to out themselves.

Now, I don’t know how things work in the UK, but if this were an American organization, the next thing would be for a gay, lesbian, or transgender volunteer in this particular workplace to go to her manager and complain that she feels “unsafe” around co-workers who would not “affirm” her sexual or gender status by wearing the Pride badge. The manager — and the human resources department — has a problem, especially if the complaining worker accuses the organization of creating a “hostile work environment” by tolerating the Bartleby-the-Bigots who prefer not to wear the badge.

Increasingly, you will not be allowed to remain silent. You must affirm, or suffer the consequences. (And even the dead — Wyndham Ketton-Cremer, the last owner of Felbrigg Hall — has been forcibly recruited for the cause.) The liberal Evangelical David Gushee, who has become an “affirm” militant, laid it out clearly:

It turns out that you are either for full and unequivocal social and legal equality for LGBT people, or you are against it, and your answer will at some point be revealed. This is true both for individuals and for institutions.

Neutrality is not an option. Neither is polite half-acceptance. Nor is avoiding the subject. Hide as you might, the issue will come and find you.

He thinks this is a good thing, just so you know. Tolerance is no longer enough for heretic-hunting cultural commissars like Gushee.

I know a man who is a senior manager at a major corporation. He is also a Christian. Every year during Pride Month, for the past few years, the human resources department at the firm has been after employees to declare themselves “allies” of the LGBT cause. This man has never done so, because he would consider it a violation of his conscience. He is scrupulously fair in his dealings with his employees, both gay and straight, and would also consider it a violation of his conscience to discriminate in the workplace against his gay employees. He is afraid that the day will come when his refusal to declare himself on the LGBT issue will be viewed negatively within the corporation, and it will damage or end his career there.

This is not paranoia. McCarthyism did not end with McCarthy.

As a related aside, it’s fascinating to see how quickly corporate America is taking up gender ideology and institutionalizing it. A reader sent me this screenshot from a survey he took:

Rockports! Is there are more staid, tranquil brand?

A different reader this morning sends this screen shot from his investment bank’s web page:

These are examples of Big Business’s power to drive cultural transformation. Cultural and religious conservatives who think that Business is a neutral force in these matters need to wake up. Capitalism is not always your friend.

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89 Responses to Bartleby The Bigots

-The state should reserve the right to criminalize homosexual behavior.
※Anal sex is harmful. Governments criminalize harmful behaviour such as taking drugs.
-Individuals, some companies and some institutions should be permitted to discriminate against LGBT people in housing, employment etc.
※We discriminate against the
blind and physically handicapped people. Why not gays?
-Same sex marriage should be illegal
※Before SSM all people were able to get married. The problem wasn’t with marriage, it is with gays.
-Same sex couple should not be permitted to adopt children or be foster parents
※Nature requires a male and female for reproduction. Because men and women are different, we should mimic this is all family relationships as much as possible.
-LGBT people should not be permitted to serve in the Military.
※T is a mental disorder. Not much good having those people in your military. Openly gay people in close quarter conditions complicates personal interactions, just like having women and men together. Not practical for a strong fighting force.
-Homosexual desire is a mental disorder
※You can’t reproduce, so is your disorder mental or physical?
-Homosexual behavior makes one less than a full person
※Again, you can’t reproduce, so you have a deficiency and ade not a full person.

“Employment at will.” Its biggest proponents in state legislatures are labor unions which use it as an organizing tactic. After all, why kick in dues when your biggest protection against firing is free for the asking.

I think it is hilarious that many of the same people who applauded the Hobby Lobby decision also complain when a non-Christian company (think Lyft) starts advocating to it’s employees a particular moral/ideological stance. Without seeing that this is what happens when you disempower workers. You corporate power pushing a policy program you may not like on you. Because capitalism that’s why.

[NFR: Hobby Lobby didn’t tell its employees not to use contraception. They only said they didn’t want to pay for it. There’s a big difference between advocating a particular moral or ideological stance, and being coerced by the government to pay for something that violates your conscience. — RD]

Steve, if I remember well, has a track record of trolling.
However, let me take the burden to answer his points from a reactionary standpoint, which is not Rod’s

The state should reserve the right to criminalize homosexual behavior.

Generally speaking, the state has the right to prosecute public display of immorality. The history of sodomy laws in the West, however, shows that they were seldom applied and their use was more to shame political enemies with false accusations than anything else.

Individuals, some companies and some institutions should be permitted to discriminate against LGBT people in housing, employment etc.

To paraphrase a notorious jurisconsult, at the heart of liberty is the freedom for the individual to discriminate, which must be extended to professional activities involving personal expression. Religious and philosophical not for profit institutions should enjoy the same liberty. Corporate businesses are a completely different thing and they shouldn’t have a right to discriminate.

Same sex marriage should be illegal
Same sex marriage doesn’t exist. Its legality is an issue only inasmuch it is a scam towards all the parties involved. Civil unions are a different business.

Same sex couple should not be permitted to adopt children or be foster parents
Agree.

LGBT people should not be permitted to serve in the Military.
L: Not in combat roles (same applies to all women)
G and male B: yes, but not if they are effeminate
Female B: same as L
T: No people suffering from psychiatric issues should be allowed to serve.

Homosexual desire is a mental disorder
I would say it’s a sexual dysfunction. This by definition, of course. I know it’s unsatisfactory because it doesn’t say anything about the causes of homosexuality. But this is, more or less, what we know. I tend to agree upon the fact that it’s not a mental disorder per se. (Transsexualism on the other hand is definitely a psychiatric disorder, whatever the causes, as it has to do with a severely distorted perception of reality)

Homosexual behavior makes one less than a full person

So far I heard this BS only from LGBT activists. Self-defiling acts don’t reduce one’s humanity.

I’v thought about this a bit , wondering if if LGBT activism has become excessive.

Wondering if? I am in no doubt that it has. Not that gays should be hesitant to work for that which does make sense and they do have a right to, but that the scope of claims goes way beyond what any broader community should entertain.

I am pretty sure Rod has articulated all these points. Please let me know if I am mistaken!

Indeed you could not be more mistaken if you worked very hard to get it all wrong.

-The state should reserve the right to criminalize homosexual behavior.

Rod has explicitly said he does not advocate that.

-Individuals, some companies and some institutions should be permitted to discriminate against LGBT people in housing, employment etc.

In specific circumstances, yes, as a broad generality, no. Rod draws some lines a little differently than I would.

-Same sex marriage should be illegal

The choice of words is inaccurate. If “same sex marriage” were ILLEGAL, there would have to be a condition or status or set of actions that constitute “same sex marriage” that could be punished by law. Rod does not believe that the term, concept, bonds, of “marriage” can in any meaningful sense apply to two people of the same sex. It has a specific meaning, and that isn’t it. That said, he does not oppose civil statutory arrangements so that same sex couples can share property, visit each other in the hospital, etc.

-Same sex couple should not be permitted to adopt children or be foster parents

Rod may have said that he believes adoption should give first priority to married heterosexual couples.

-LGBT people should not be permitted to serve in the Military.

You are conflating L, G, B, and T, which are four different things. Rod has said rather different things about each of them. So have a lot of other people here.

-Homosexual desire is a mental disorder

The adjective “mental” is misplaced. Rod may well believe that homosexual desire is intrinsically disordered, in the sense that to him sexual hormones and desires have a transcendent purpose not served by homosexual passions.

So what? He can believe whatever he wants about that, and people who do not share his faith can do whatever they think best.

But when it got to gender, it had one of those “I identify (or mostly identify) as…” constructions followed by a rather long list of gender choices. You couldn’t skip the question and still take part in the survey, so I deleted mine instead of participating.

I recently was dialed by an automated telephone political survey. The second question asked if I consider myself “libertarian, very liberal, somewhat liberal, moderate, somewhat conservative, or very conservative.” I hit the zero button trying to get a live human being to explain that I am a libertarian socialist who despises liberals and recites the Nicene Creed every Sunday, but the software just kept repeating the question, so I hung up.

[NFR: I do believe the state has the right to criminalize homosexual behavior, though I believe that the state generally should not do that. Justice Scalia pointed out in his Lawrence dissent that the decision effectively invalidates all morals laws. — RD]

So again I wonder what’s the bottom line here? Are conservative Christians who refuse on principle to express support for gays and other previously scorned minorities supposed to believe they’re becoming a persecuted minority because a lot of people, including employers, may scorn them for refusing their support? Isn’t that just the way this kind of social change works? People finally see how cruel it was to scorn certain other people and then set about making it a rule that no one may do so in the future? They’ll naturally look down on those who continue the old behavior. Of course, that doesn’t give them the right to act unjustly toward anybody. Laws should provide equal protection. But then, all those anti-discrimination statutes that have been extended to cover sexual minorities also mention religion as well. In other words, Christians ARE themselves supposed to be protected from discrimination. We have the same laws on our side others have on theirs. That didn’t used to be true for the LGBT community. Now the laws protect — or at least are supposed to protect — both them and us.

RD: “I do believe the state has the right to criminalize homosexual behavior, though I believe that the state generally should not do that…”

I think it would be good if you’d go into your thinking on that in a little more depth. Why such a right, and why shouldn’t it be invoked?

[NFR: Because as Scalia said, if the state doesn’t have the right in principle to regulate morals, there would be no morals laws (e.g., against prostitution). But just because something is immoral doesn’t mean it should also be illegal. — RD]

The state should reserve the right to criminalize homosexual behavior.

Generally speaking, the state has the right to prosecute public display of immorality. The history of sodomy laws in the West, however, shows that they were seldom applied and their use was more to shame political enemies with false accusations than anything else.

They were also used to prosecute sodomy as a means of rape. I may be wrong, but I don’t believe this was covered under normal laws regarding rape. So a pedophile who abused a boy would have a sodomy charge.

The reason they were seldom applied to consensual relationships is because it required a high standard of proof that couldn’t be usually met. The older laws required physical evidence or a large number of witnesses, so there couldn’t be scurrilous accusations. And family members weren’t going to turn over a brother or sister for something like this.

They also applied to male-female sodomy and didn’t single out homosexual relationships until the 20th century, which is something Justice Kennedy pointed out in Lawrence. I was reading about one case where a husband was prosecuted for committing sodomy with his wife. Kennedy made the case that this meant the state was no longer prosecuting an act neutral to its participants, but the participants on the basis of their sexual orientation.

Interestingly, he declined to judge whether marriage laws were neutral about the sexual orientation of its participants in later cases.

RD: “Justice Scalia pointed out in his Lawrence dissent that the decision effectively invalidates all morals laws.”

Scalia made a lot of sweeping pronouncements in that dissent without bothering to back them up with much more than his own authority. His domino argument assumes no laws relating to sexual behavior have any bases other than that a majority of citizens in any given jurisdiction holds that they should be illegal. So, if the Court could ignore what most Texans thought and declare homosexual behavior legal, there was really no basis left for criminalizing other sexual behaviors Texans hate, from polygamy and same-sex marriage to incest. In other words, Scalia was basing criminalization on the will of a democratic majority, not on teleology or tradition or much else. But he couldn’t foresee that will changing with regard to homosexuality and yet remaining constant with regard to, say, incest. And yet in America at large, the democratic majority has come to agree with the reasoning of the Court that the principle of equal treatment required striking down state sodomy laws because they’d been enforced against homosexuals only, not heterosexuals. And the same principle eventually turned both the Court and public opinion in favor of same-sex marriage on the grounds that homosexuals should have the same right as heterosexuals to marry their partners of choice. You may think Scalia was right that sodomy laws should have been upheld, but I can’t see how the grounds he used for his argument are any help at all.

Giuseppe writes, “Corporate businesses are a completely different thing and they shouldn’t have a right to discriminate.”

Come again? This lies flatly contrary to the argument that religious conservatives have made in numerous pending cases. If business entities other than churches can have religious beliefs that permit discrimination, then it should make no difference what those religious beliefs are. Otherwise, the government is guilty of privileging one set of religious beliefs over another. Thus, if a for-profit corporation, such as the flower shop in Washington, can discriminate against LGBTQ people on religious grounds, then a bank, law firm, etc. should be able to protect its “values” and thereby discriminate against people who hold views contrary to those values.

I see religious conservatives as asking for a heads-we-win-tails-you-lose sort of scenario. They want to be able to discriminate against LGBTQ people in their own businesses. Even so, they want to retain legal protections for themselves in instances where they work for employers whose values they oppose.

If the flower shop in Washington has the right to refuse certain services to LGBTQ customers as a means of protecting its corporate values, then an investment bank ought to have the right to make business and employment decisions that protect its corporate values.

This is truly getting out of hand! And with no end in sight. In looking back, I am amazed at the speed with which what was heretofore considered deviant and abnormal behavior has now reached a point where it has become the “in thing.” The credit if you will goes to those who are in control of the media and to their ability to manipulate information with the knowledge that the great mass of humanity is essentially stupid and will buy into anything. When asked why he composed “Les Prelude” (which he considered third-rate), Liszt replied “Because people love trash.” Who controls the media controls the agenda. And the public, like lemmings, simply follow.

And we wonder why a supposedly “civilized” country like Germany could come under demonic possession.

NFR: I do believe the state has the right to criminalize homosexual behavior, though I believe that the state generally should not do that. Justice Scalia pointed out in his Lawrence dissent that the decision effectively invalidates all morals laws. — RD

Thank you. That’s an important clarification, although you HAVE said that before, and it is a point worth digging into. I support Lawrence v. Texas as a reasonable application of the right to be left alone, as Justice Louis Brandeis articulated it, but, I have wrestled with Scalia’s arguments, and it takes some careful thought to allay his concerns.

Basically, if the premise is “I have a constitutional right to do anything I want and the government has no right to stop me” then we have no law at all, and anything goes. That would be a perfect state of anarchy. One reason I’m not an anarchist is that the subsequent developments would be the tyranny of the strongest and most ruthless over everyone else, who would find their own personal freedoms greatly infringed.

One could look for instance at those residents of San Francisco who have asserted in recent years a “right” to walk around nude in public. The notion that some or all of the human body should be covered is not, of course, a natural instinct, but is a very deeply rooted cultural custom. SOME covering is almost universal, although how much, and when its OK to remove it, or OK that it fell off, varies considerably.

The first distinction I would make is that a right to PRIVACY hardly covers the right to FLAUNT anything. I’m tolerant of people having pornographic material mailed to them in plain brown paper wrappers (I know, showing my age here, we have the internet now) but I believe that I have a right not to have such material pasted on billboards or displayed in store windows where it can hardly escape my eyes whether I want to see it or not. Ditto for nudists appearing in public — even if they do put a towel on the park bench before they sit down.

If you frighten the children and the horses, there will be laws about it.

Many on both sides critiqued or lauded Lawrence based on whether it was “pro-gay” and therefore “progressive” or “anti-gay” and therefore “conservative.” Constitutional law turns on none of the above. Now if the case had been decided on “equal protection of the laws,” which only Sandra Day O’Connor proposed, and for the most self-serving of reasons,* there would have been major problems. Because if “homosexuals” have an equal protection right to be treated “the same” as “heterosexuals,” then five year olds have the right to be treated the same as 25 year olds, and rapists have the right to be treated the same as celibate monks.

Things that ARE in fact different may be treated differently by law.

What does that mean for morals legislation? One, the more public the activity, the more it is subject to regulation. The more private (and consensual) the activity, the less it is within the government’s jurisdiction. If the activity is NOT consensual, then no matter how private, there is a victim with standing to prosecute, criminally or civilly.

*Sandra Day O’Connor was in the majority when Bowers v. Hardwick was decided. She wanted to joint the majority in Lawrence without admitting she had been wrong about Bowers. Since Bowers had considered, and rejected, a “right to privacy” arguments, by the arcane processes of legal jurisprudence, O’Connor could argue that while there is no right to privacy protection for homosexual acts, the class designated “homosexuals” have an equal protection right to be treated by the law the same as the class designated “heterosexuals.” Despite the horrendous damage such a ruling would have done, O’Connor argued it as a way of not having to say she had been wrong. She wrote an individual opinion concurring in the judgment.

Siarlys Jenkins says: August 4, 2017 at 10:01 pm
“we think all they are ENTITLED to is some social space to live their lives in peace and quiet.”

Right – so peaceful and so quiet that you don’t have to be aware of their existence.

“A national historic site is a public venue, run by the government, which has all kinds of duties to be neutral ”

It is a charity, not a governmental agency. Check the website.

“Nothing wrong with fixing that little detail, but it can and should be done subtlely.”

In YOUR opinion. If it were you who owned the building, would you want the fact that you are a Christian to be so subtle? These people are sick of hiding and do not want to do so any longer. Is that really so hard to understand?

“Surely you’re not saying a distinguishing characteristic of gays is that none of them had mothers?”

OF COURSE, I was not saying that and you really had to work hard at it to misunderstand it. I was quite obviously making an effort to understand, as a straight person, how it must feel to be a gay kid and gay adult by relating an experience of my own to theirs. It is a common thing for compassionate people to do. Your response to it is truly beneath you given what I have read of your responses in the past and is most notably lacking in any compassion whatsoever. It was ignorant as well given that all teachers must indeed instruct the entire class to have something signed etc on a regular basis – they don’t address each student individually.

My employer is a huge diversity promoter. In fairness to them they try to eliminate reverse discrimination too. When I see male female or chose not to identify, I am tempted to chose the later because identity politics is killing our culture. I am just so sick of identity that chose not to identify is the same as saying none of your business.

Are conservative Christians who refuse on principle to express support for gays and other previously scorned minorities supposed to believe they’re becoming a persecuted minority because a lot of people, including employers, may scorn them for refusing their support?

Yes. Absolutely, emphatically, almost by definition, yes.

Please note that I myself am not a “Christian conservative.” I’m a carefree heterodox Christian socialist libertarian, who cares about the meaning of constitutional principles. An employer has, in general, no ethical right to retaliate against an employee because they are gay, or because they believe homosexual engagement to be an offense against the divine order, or for any other reason of personal opinion or belief, that is not directly relevant to job performance.

So, if “Christian conservatives” are a numerical minority, and are singled out AS A CLASS, or as individuals, for their personal opinions, beliefs, creed, religion, etc., they are being inappropriately persecuted. Case closed.

If you were hoping to enjoy the show at the Coliseum and cheer for the lions, sorry, wrong century, wrong country, wrong constitution.

Right – so peaceful and so quiet that you don’t have to be aware of their existence.

Well, if that’s what you believe Pepi, you are a sad case indeed. I won’t attempt to speak for you — you have done that for yourself, and can correct any misapprehensions you may have created. Speaking for myself, I am well aware that gay people exist, and I have had friends and co-workers who were gay long before it was so cool. But I won’t tell anyone I think it is “so cool” that someone is gay.

If it were you who owned the building, would you want the fact that you are a Christian to be so subtle?

My sense of Christianity is so subtle that most brands of Christian orthodoxy deny me access to communion, which I accept with good grace as entirely appropriate. I generally prefer that the fact I am a Christian remain subtle, yes, unless it is specifically relevant to an event or conversation, in which case I may mention it, but never trumpet it.

I actually think it would be a fine thing if heterosexuals toned down their public displays a little too. (Please note that nobody’s opinion except my own comes out of my mouth, pen, or keyboard).

I was not saying that and you really had to work hard at it to misunderstand it.

Didn’t have to work hard at it at all. It popped right out of your choice of words and sentence structure. Have you forgotten that I am this site’s persistent critic of “The Fallacy of Analogy”? Don’t try to feel what its like to be someone else — you can’t do it. And your experience is markedly different from the one you are trying to “feel.”

all teachers must indeed instruct the entire class to have something signed etc on a regular basis – they don’t address each student individually

How static and rigid of you. If a teacher is required to obtain signature of a parent or guardian on X paper from all students, then that is a general obligation. But there is no reason a teacher should not get to know the students’ families, just a little, and be able to speak more specifically to individual students.

This lies flatly contrary to the argument that religious conservatives have made in numerous pending cases.

And that makes Giuseppe wrong? He has been known to make statements before that a significant number of “religious conservatives” would disagree with. He is a unique individual, and under no obligation to conform his own perceptions to those of any given set of talking heads.

If the flower shop in Washington has the right to refuse certain services to LGBTQ customers as a means of protecting its corporate values

DATA ERROR *** BEEP BEEP BEEP *** DATA ERROR…

There weren’t any “corporate values” concerned. This was not 1-800-FLOWERS. It was a specific individual sole proprietor who reached across the counter and took the customer’s hands in hers and gently explained to him her personal qualms about accepting the order.

Scalia made a lot of sweeping pronouncements in that dissent without bothering to back them up with much more than his own authority.

Yeah, he and Anthony Kennedy are quite a pair… both appointed by Reagan, I might add. But it was more than a batch of sweeping pronouncements. He raised some points that need to be answered to sustain the majority opinion. I can do that, and have, but it takes some work.

And yet in America at large, the democratic majority has come to agree with the reasoning of the Court that the principle of equal treatment required striking down state sodomy laws because they’d been enforced against homosexuals only, not heterosexuals.

You must be on your guard against voluntary ignorance when indulging in passionate commentary. That was NOT the reasoning of the Court. That would have been the reasoning of the court IF Lawrence was based on the principle of “equal protection of the laws.” That argument was submitted in briefs, and the court chose not to rely on it. Instead, the court relied on the right to privacy, as, in my seldom humble opinion, was only right. It was an individual’s choice to make, without state intervention. It was not the right of a class, compared to the exercise of a right by another class.

If “gay sex” was a right because “heterosexuals get to have sex” then equal protection would require that there must be a Nobel Prize for janitors, because economists get a Nobel Prize. Its arguable that what gay couples share is not “sex” at all, biologically speaking. But its really not the government’s business to interfere in private decisions like that.

Given some of the details that have been presented here about the mechanics of sodomy and the impact on muscles and function, I’m not so sure it would be a bad idea to outlaw it. That would apply to both heterosexuals and homosexuals of course, and it would not be enforced on a large scale, but, when a significantly damaged patient showed up at the hospital, it might be something to invoke.

:[NFR: Hobby Lobby didn’t tell its employees not to use contraception. They only said they didn’t want to pay for it. There’s a big difference between advocating a particular moral or ideological stance, and being coerced by the government to pay for something that violates your conscience. — RD]”

Health insurance is part of a workers compensation and has been consistently seen as that since at least World War II when it started to be offered as a way to bring in workers since there were wage controls and paying for health insurance that does things you disagree with is no different than handing a paycheck over to a worker who goes out a blows it on things that violate your conscience.

This is a rare occasion that I agree with Jesse. I think that the Hobby Lobby case was a bad decision that will come back to haunt traditionalists. It certainly runs against the strategy of “live and let live.”

I also second Jesse on Hobby Lobby. The real dispute was whether overbearing plutocrats have a right to condition their employees’ use of compensation paid for services rendered. It was a workers rights case, and the working class (including those who may choose to think of themselves as “white”) were the losers.

Anal sex is engaged in by heterosexual couples too, and thus has an order of magnitude more practitioners than gay men. A minority of sexually active women enjoy it as part of their sexual repertoire and believe it or not some men enjoy being the receiving partner in the heterosexual version of it as well (it’s called “pegging”). Also not all gay men are into it. It’s possible to be gay and not care for anal sex.

So you’d have to do a lot of policing of bedrooms and also outlaw 90% of heterosexual porno films in existence. Anyone possessing such films, whether they care for that particular action themselves, would suddenly become a criminal then (75% of the population has porn on their computer or on physical media?)

So do you still want to make it illegal?

Btw sodomy refers to anything that isn’t vaginal intercourse. For instance fellatio (oral) is sodomy. So if you’ve ever received oral you sir, are a sodomite.

So can an employer who is a Scientologist refuse to provide psychiatric coverage to their employees? You know they are militantly against it. All the anti-depressants and anxiety medications and mood stabilizers that help people live normal lives are toxic quackery to them.

It is about time to curtail the power of the employer to dictate what employees do when not at work, and activities not related to their duties.

Too many conservatives applauded it when it came to enforcing norms that they approved of. Now the shoe is on the other foot. And as Thomas More said, that once the Devil turns on you, where will you find refuge when you have destroyed it?

I also second Jesse on Hobby Lobby. The real dispute was whether overbearing plutocrats have a right to condition their employees’ use of compensation paid for services rendered. It was a workers rights case, and the working class (including those who may choose to think of themselves as “white”) were the losers.

In this respect, I much prefer the European system, where healthcare insurance and pension funds are co-managed by workers’ representatives (usually, but not mandatorily, through trade unions)

Catalan

Legal personhood is a metaphor which has been stretched far beyond its usefulness. It’s another of those modernist tendencies to gnostic abstraction which is causing so much damage.

@Siarlys: The flower shop in Washington is not a sole proprietorship. The business is Arlenes Flowers Inc., which is a registered for-profit corporation organized under the laws of the State of Washington. Check out the Washington Secretary of State website.

@Erdrick: I agree. I think religious conservatives will come to regret the principle established in the Hobby Lobby case. Already, a number of major corporations require vendors to review their values and affirm their unambiguous agreement with those values as a condition of receiving business. I’d guess that about half of my firm’s clients require me to take a values quiz before I can be approved to do work for them.

@Giuseppe: Maybe so. But that’s not the position that religious conservatives have taken in the US.

The outlawing of sodomy on health grounds “because it hurts you” opens the door to prsecuting people who do not have a healthy diet. After all, obesity is the cause of too many diseases, and even a few pounds overweight can give you a heart attack.

So, if the State has the right, on health grounds to outlaw sodomy, why should it not have the right to lock up Chris Christie for his unholy love of Nachos?

The business is Arlenes Flowers Inc., which is a registered for-profit corporation organized under the laws of the State of Washington.

In modern America, individuals who run a business out of their garage with no employees at all can incorporate, which is no bad thing. It means that they share with I.E. Du Pont de Nemours Inc. the privilege if not having their home, their car, their personal savings, their children’s educational fund, confiscated to pay the debts of the business in case of bankruptcy.

But an individual running a small personal business is, by your own admission, not the same as a gigantic soul-less corporate entity in terms of its rights.

Too many conservatives applauded it when it came to enforcing norms that they approved of. Now the shoe is on the other foot.

Which will get us to a better place? Enjoying the site of conservatives being thrown to the lions by the very forces we have long decried? Or welcoming the belated support of conservatives as the scales fall from their eyes? Corporate capitalism is the enemy, even if they are persecuting conservatives.

So you’d have to do a lot of policing of bedrooms and also outlaw 90% of heterosexual porno films in existence.

Baron Harkkonen, I don’t know which of the advocates of possibly banning sodomy you were responding to. Speaking only for myself, you may have noticed that I mentioned such a law would be honored in the breach quite often, would seldom be enforced, but in the most egregious circumstances, would be on the books and available, which might at least induce people to be most careful when they indulged.

My primary point is, removed from the gay rights issue, the act itself is hazardous, and therefore could be constitutionally regulated or outlawed, without respect to race, creed, color, nationality, sex, or sexual orientation. Whether its worth bothering is another question.

The outlawing of sodomy on health grounds “because it hurts you” opens the door to prsecuting people who do not have a healthy diet.

The outlawing of aggravated assault because it hurts you opens the door to persecuting people who get themselves tatooed?

This all or nothing syllogism is the most pathetic whimpering nonsense I’ve seen in a long time. If you don’t understand the difference between a specific time-limited act that tears the muscles of one human being by the invasive actions of another, vs. the cumulative effects of voluntary consumption of food by a single person at their own volition, you are unqualified to legislate on any subject whatsoever.

But of course you were just grabbing for a foolish analogy to reassure yourself that there is nothing to rethink in your adopted ideology.

You may not like sodomy even consensual. I just pointed out that “because it is not good for you” is NOT a rationale for crimializing people who indulge in something. You may think that I am stretching things a bit when I address overeating. But give it a few years, a few more fat shaming incidents, a few more statistics of what it costs the American economy all those diseases, and one day someone will want to make it illegal to indulge in the wrong foods. When it happens, you will remember Thomas More warning about tearing up places that could have been a refuge.

For you it is an important difference. For those now engaging in fat shaming, it is not. God help us overindulgers if they ever get power.

As for the disjuncitive you offer, between being glad that conservatives are hoist by their own petard, or welcoming that they are finally seeing the light, I do not see it that way. Because unless they were hoist by they own petard, they will have never seen the light. So I am rejoicing at their coming enlightment. But, since I am an imperfect human being, I am also indulging in a few “I told you so”s.

[NFR: Because as Scalia said, if the state doesn’t have the right in principle to regulate morals, there would be no morals laws (e.g., against prostitution). But just because something is immoral doesn’t mean it should also be illegal. — RD]

Rod,

I don’t think this is either correct either as a general position or w/r/t the specific example you use. With respect to sex work, a bunch of countries and jurisdictions have in fact legalized it or liberalized their prostitution laws in the last couple decades, but other countries have passed new legislation outlawing it (e.g. Sweden and Norway last decade, and France and Ireland in the last couple years). In 2013 for example you had an article here lamenting a decision of the Canadian Supreme Court regarding prostitution, and I think you expressed the opinion that in the wake of Lawrence laws against prostitution are destined to fall. In fact exactly the opposite happened: the Conservatives pushed through a ban on prostitution that actually made the laws tougher than they were before. That law is from what I can tell unpopular and probably won’t last all that long, and I think the long term trend in public opinion is towards legalization of prostitution, but there’s certainly nothing inevitable about it. In some other regards (e.g. the recent kerfuffle about ‘affirmative consent’ laws and the proposal to replace it by some asinine concept of ‘enthusiastic consent’) our country is getting more puritanical.

What Scalia said is, on its face, correct, if you view the law as a set of mathematical formalisms that logically follow from and depend on each other: “he who says A, must soon say B.” What I think you’re missing is that isn’t how the law works. The law codifies the normative preferences of political elites, as far as I can tell: there’s nothing much more to it beyond that. The reason we have gay marriage today is because a critical mass of the American people, and more importantly a critical mass of the circles of people who serve as lawyers, judges, politicians, etc. became convinced that homosexuality was morally unobjectionable and that gay marriage made sense. They haven’t come to such a conclusion about prostitution, or polygamy, or open marriages, or any of these other things, which is why those things aren’t accepted under our social and legal environment as yet. I don’t think this is a good thing- I would favour a much more libertarian approach to issues like polygamy, open marriage, sex work, etc.- but it is definitely a thing. What’s happened in places like America, Sweden, etc. isn’t the retreat of normative moral preference from the sexual arena, it’s the replacement of one set of sexual morals with another set.

Lawrence notwithstanding, anyone who wants prostitution, or polygamy, or moderately intoxicated sex, or open marriages, whatever else to be illegal can simply make an argument that these things are bad for society, or exploit women, or aren’t truthfully consensual, or whatever else. I think those arguments are all spurious, but I think they show something really interesting which is that even if we have a judicial norm that says “no morals legislation in matters of sex”, people who really want to outlaw something will find lots of ways to easily get around it. They’ll just concoct reasons (often really bad ones) why there are legitimate harm-based reasons for their particular pet peeve to be outlawed.

Well now you are contradicting yourself for having at once dismissed Justice O’Connor’s concurring opinion you are now employing the rationale that would sustain it. Same-sex couples who engage in anal sex are either similarly situated to opposite-sex couples who engage in anal sex or they are not.

Now, with respect to the Court’s decision-making process, you are correct that the Court decided Lawrence on substantial liberty grounds under the Due Process Clause. However, the Court did not dismiss the Equal Protection argument as out of hand and a thorough reading of the Court’s opinion would show that their stated concern was that O’Connor’s equality argument did too little to address the equality concerns of those gay people living in the other states.

O’Connor’s concurrence was “tenable” but it did not do enough to overcome the burdens of those living in states that did not have a Homosexual Conduct law (only four of the states with “sodomy laws” singled out same-sex partners for disparate treatment.)

Gays living in states that have enacted sidomy laws that are neutral on their face would still be treated as presumed unindicted criminals since the only sex they would normally engage in was criminalizes whereas straight people who engaged in that activity would not be treated that way because one could pretend that they were only engaging in the procreative sexual acts.

Moreover the court noted that a police officer may still choose to enforce the law more rigorously against gay couples than it would against straight couples.

Kennedy noted that a ruling on substantial liberty grounds would help gays living in those states escape unscathed on both counts. Affirming their privacy rights protected them from discrimination in sex law.

Moreover, in a separate case the Court vacated a Kansas court ruling upholding the disparate sentencing guidelines in its “Romeo & Juliet Law” and ordered the Court to reconsider its ruling given the new precedent established with Lawrence https://en.m.wikipedia.org/wiki/State_v._Limon.

I have no doubt that Kennedy would have sided with the liberals if they were only considering an equal protection argument, particularly given his rulings on DOMA and gay marriage rights but given that the Court agreed to reconsider whether Bowers was still relevant Kennedy chose to address the more fundamental problem, which was that Bowers was bad law (it was a departure from the analysis offered in contraception and abortion cases – Griswald, Eisenstadt, and Roe).

at the time Lawrence was first being considered I was more pessimistic about our chances of winning that one. I thought then that at best, we had him on Equal Protection. Boy was I wrong, and after reading Joyce Murdoch and Deb Price’s “Courting Justice” I saw how wrong I was. Prognosticator I am not. Kennedy was troubled by the Bowers’ decision on privacy grounds long before he agreed to take that case

Now, as to the supposed harm
I would note that lube and foreplay are used to relax the muscle and allow for easier passage so that trauma is minimized.

If you are not using lube or engaging in the proper fore play then you are doing it wrong.

The expressed “concerns” regarding muscle damage were raised in briefs submitted from the anti gay religious groups. No doubt those “concerns” were not shared by those groups submitting briefs on the pro-gay side. They raised counter-arguments.

In either case the Court dismissed that concern either because they didn’t buy into that argument or considered it irrelevant. Harm to oneself (if this can be called that) is just that, harm to oneself. One voluntarily accepted the penetration from another. It was not an act of rape or sexual molestation so in at worst this was not an act of one hurting another so much as an act of one choosing to allow himself to be hurt.

John, this argument is not worth responding to at length. But the “concerns” about muscle damage, on my part, derive from a recent comment in this space from someone with detailed empirical knowledge of what is happening to teen girls induced to try anal sex by boys who have been watching a lot of porn. Its questionable whether criminal legislation is desirable or effective, but there is an empirical basis to reconsider the “who is harmed?” argument.

I don’t follow your argument about Justice O’Connor’s concurrence. The harm caused by anal sex is the same regardless of the sex of the person harmed, if harm there be. Both sexes are in fact anally similar. Two men, two women, or a man and a woman, are none of them similarly situated to each other.

I agree with the line of jurisprudence which held that Kansas and other states may not impose greater penalties for illicit homosexual sex than for illicit heterosexual sex — if it is illicit, the basis for that is the same no matter the sex of the persons involved. I considered that homosexual rape of a heterosexual person might be a more serious crime, because for that individual it violates their very nature … but then, heterosexual rape of a heterosexual person might be similarly aggravated, since it traumatizes a natural function they may never be able to exercise again. So it all evens out.

I would like to think that if I were homosexually raped, I would not even consider it sexual, but mere aggravated battery and mayhem, since I don’t have a sexual orifice. Whether I would actually feel that way I cannot know, and hopefully will never find out. (Rapists, I suspect, don’t take the time for lube or foreplay).

Incidentally, the “harm to one self” argument, if carried to its ultimate extreme, would mean that laws against suicide are invalid. I am skeptical about criminal penalties for suicide, but not opposed to involuntary commitment for a period of time.

Justices have many vapid, flowery, thoughts while considering constitutional questions. Its one reason opinions are much longer than they need to be. What is important is not the high-flown speculation, but the actual constitutional question at issue. Privacy is privacy, and that was the basis of the ruling.

You seem to be confused as to the difference between consent and non-consent. Sodomy without the consent of the partner is assault. As would be the tattooing of an unwilling subject (since you made that comparison).

But if the subject is willing, and actually finds it pleasurable, trying to criminalize the act because “It is harmful” opens the door to criminalizing a lot of harmful activities which many find pleasurable.

I already mentioned overeating. Then tattooing and piercing, which can lead to infection. Have you never put a Q-tip in your ear? Seems that many find it highly pleasurable and indulge in it, even if they are at risk of piercing their eardrums. Let us not even talk about extreme sports. Nor bungee jumping.

How about yearning for Fugu fish?

Once you put “preventing harm to yourself” as a cause for prosecution, a lot of people will find themselves on the wrong side of the law.